This week, Supreme Court nominee Neil Gorsuch will be voted on. As it stands now, it looks like Democrats, led by Chuck Schumer as minority leader in the Senate, will likely filibuster the nomination. Even with a couple of Dem defectors like Joe Manchin, who frequently votes with Republicans, the GOP still doesn’t have the 60 votes to overcome the filibuster. So,
Ninja Turtle Majority Leader Mitch McConnell has signaled that he’ll invoke the “nuclear option”, changing the Senate rules (which he can do by a simple majority vote) to eliminate the filibuster of Supreme Court nominees.
Now, I’m a progressive guy in every way. I’m still outraged that Obama’s choice, Merrick Garland, hardly a liberal firebrand, didn’t get an up or down vote in the Senate. There was no basis to deny him that, and there never was. It was unprecedented obstruction even in a party committed to unprecedented obstruction during Obama’s entire tenure. And Neil Gorsuch is about the last person I’d ever personally pick or endorse as a Supreme Court justice. I’m a trial lawyer, I represent plaintiffs, and I know that Gorsuch, like anyone else in the conservative wing of the Court, is going to make rulings that damage consumers in favor of business interests. And he presents a real threat to a woman’s right to choose as well, although frankly I doubt that “big picture” conservatives ever want to see Roe v. Wade abolished, because then how do you get evangelicals to support your other dreadful policies?
But for the life of me, I think that filibustering Gorsuch is a bad move. Yes, I fully support opposing the Trump agenda in every way possible. No, I don’t want to see Gorsuch sitting on the Court. But filibustering Gorsuch’s appointment is stupid x 10. All it does is play to the base who wants to oppose everything Trump. And while I understand that, this is the SUPREME COURT, people. Assuming that McConnell does have the 51 votes to change the Senate rules, and I’m sure he does, the filibuster accomplishes nothing, allows Gorsuch to get confirmed by a 51-vote majority, and permanently alters the landscape of the Senate for the worse.
Legislation in the House passes by a majority. And we all know what a shit show the House of Representatives has become. By turning the Senate into another version of the House, especially on an issue as important as Supreme Court nominees, the Senate loses its fundamental character as a more deliberative body, and the ability to push through Justices on a bare majority, without the opportunity to filibuster, opens the door to some radical right nominees in the remainder of the Trump term. It further degrades the already polarized-to-the-point-of-paralysis legislative process. If McConnell has the ability to invoke the nuclear option and eliminate the filibuster, the ability of the minority party to place a check on mob rule goes out the window. He certainly intends to pull that trigger if Dems filibuster. So the filibuster would accomplish nothing and would just be another stepping stone on the path to decline we’re already on.
I loathe the ideology of Gorsuch as a judge. Maybe sometime in another column, I’ll address what a steaming pile of hypocritical bullshit originalism really is. But on the issue of whether he is “qualified” I’d have to grudgingly concede he is. He’s checked off all the boxes on the resume, he applies his judicial philosophy consistently. And it looks like he will be appointed as a Justice regardless of any display of resistance.
Now, it may well be that the demise of the filibuster for Supreme Court nominees could be on the table the next time also, and that Dems are simply in a no-win position when it comes to SCOTUS nominees put up by Trump. However, with this administration’s approval ratings hovering in the mid-30’s range which is pretty much identical with Trump’s base, with the ongoing Russia scandal, the roadblocks he’s hit on healthcare and immigration bans, I’d be willing to bet that dealmaker Trump will sooner or later be forced to make a bargain on something or another with Dems, and that could moderate the choice of the next Justice he appoints, if, God forbid, he gets to pick another. This is not the place to make a last stand.